Citation Numbers: 189 Iowa 1039
Judges: Arthur, Ladd, Stevens, Weaver
Filed Date: 10/19/1920
Status: Precedential
Modified Date: 7/24/2022
Defendants, H. A. Witty and Oliver Witty, are brothers. H. A. Witty was a bachelor, 3(3 years old at the time of the trial, and lived on a rented farm, 4y2 miles from the toAvn of Murray,, in Clarke County. Oliver Witty and his Avife lived with him, in the same house, and AArorked for him. H. A. Witty has been engaged in farming for the last 14 years, and before that he Avas a coal miner. On September 11, 1919, the Witty house was searched by the deputy sheriff, and there Avere found and seized 12 gallons and 3 quarts, lacking one-half pint, of whisky. The whisky Avas in 116 bottles: 53 half pints, 51 pints, and 12 quarts. About half of the whisky was found upstairs in a smalL bedroom, and the other half in the cellar. The Avhisky belonged to H. A. Witty. He had bought the liquor in St. Joe, the latter part of June. No empty bottles were about the premises.
James Morgan, witness for the State, testified that, on the Sunday before the 4th of July, H. A. Witty and some other man in. an automobile stopped in the road in front
H. A. ‘Witty, as a witness for himself,, gives a slightly different version of the conversation in the road. First, he explains how he happened to be with this man in the automobile,- — says that he ivas traveling along the road on ‘an errand, and this man drove along in an automobile, and asked him to get in and ride; that the man was a party he knew in Des Moines; that he guesses his name is Jones, but is not sure; that Jones told him he had a couple of pints of whisky to sell; that Jones offered him a drink, but he refused; that they stopped in the road in front of Morgan’s house; that he told the man that he did not know whether Morgan would want to buy some whisky or not. He says:
“I told Jones to call Morgan out, and if he wanted to buy it from him, he would buy it. Morgan’s place is four or five miles from mine.”
He also testified that he had been engaged in farming for the last 14 years; that before that he was a coal miner; that, when he quit coal mining and went to farming, some Des Moines doctor, whose name he had forgotten, told him to'use liquor for trouble he had with his lungs and stomach; that he used whisky purely as a medicine; that he was brought up to use liquor; always kept liquor, and used from a half pint to a pint a week; that his brother Oliver used about the same; that Oliver’s wife took a drink now and then, but she drank wine. He said:
“I bought the liquor the latter part of June, probably 10 days before the 4th of July. I went to St. Joe myself, and I brought back 100 pints of whisky and 5 quarts of wine; and as* to how much I used before the 11th day of September, the day that Mr. Tillotson was there, I had a few pints before Mr. Tillotson came out there; and before*1042 I went to St. Joe, I sent to Minneapolis after my whisky. I would, buy it once every 2 or 3 months, — maybe once every 6 weeks, — and I used it purely as a medicine: I am not very stout. I suppose the particular ailment I am using this whisky for is my stomach, — I don’t know; and as to my still acting under the advice of the Des Moines doctor, I am not really acting under the advice of anybody now; and as to how I came to know that Jones had the whisky, that he had a couple of pints to sell, he told me he had. As to my thinking Morgan would want it, I didn’t know whether Jim would want it or not. I didn’t' ask him whether he wanted to buy it. I didn’t tell Jones to ask him; I told Jones to call that fellow out; and if he wanted to buy it from him, he would buy it.”
He says that he never kept any liquor for sale, and never sold any.
Oliver Witty testified that he and his wife worked for his brother, H. A. Witty, and had nothing'to do with renting the premises; that his brother was sickly when he left the mines, and the doctors told him to use some liquor; that was 14 years ago; that liquor ivas always used in their father’s home; that his wife liked a drink once in a while; that he never sold any liquor, and never knew his brother to sell any; that his brother does not buy liquor for him— he buys his own liquor; that he has bought whisky, five gallons at a time; that, if he wanted liquor, he bought it for himself; that they both bought liquor, and, when one was out, he used the other’s liquor; that the liquor seized was the largest quantity bought at any one time; that, before, they had only bought 5 or C gallons at a time.
Mrs. Oliver Witty testified that she used liquor, that:
“I ha,ve my hot toddy every morning, and I would this morning, if I had it. I have not had any since they took it away. I expect I will die with the flu this Avinter.”
She testified that the sheriff took every bit but four bottles of Avine, which he left for her; that no liquor Avas given aAvay or sold on the place; that the reason they got this amount at' the time it Avas gotten Avas “that the state
Arl Jeffries, J. R. Oorneilison, Albert Duggatt, and W. L. Blood, witnesses for defendant, testified that they were neighbors, and were at the Witty premises frequently, and had never seen any liquor sold there, or anything to indicate that there was liquor sold there.
At the close of the evidence, a verdict of acquittal was directed in favor of the defendant Oliver Witty. A motion by defendant to withdraw ■ testimony of James Morgan from the jury was overruled. A motion by defendant to direct a verdict in favor of II. A. Witty was overruled. The case was submitted to the jury as to H. A. Witty.
Five assignments of error are directed to rulings and instructions as to the testimony of James Morgan, who testified to a conversation with defendant and the occurrence in the road in front of Morgan’s house on the Sunday before the fourth of July.
We find no error. The Morgan testimony was competent, as bearing on intent, — as a circumstance tending to show defendant’s attitude with respect to the sale of liquor. To say the least, the conversation, either as related by Morgan or Witty, shows that the defendant was instrumental in making the sale of two pints of whisky to Morgan, although it was not the defendant’s whisky that was sold to Morgan, and it is not claimed that he made the sale. The court cautioned the jury not to consider the testimony, so far as the sale was Concerned, but the fact that the conversation was had, and the conversation, were admitted in evidence. It was not defendant’s whisky that Morgan bought, and defendant did not sell it. The other man sold it, and got the money for it. However, defendant’s own testimony shows that he discovered Morgan, the purchaser. Jones did not know Morgan. Morgan says that, when he came down to the road, Witty asked him if lie wanted to buy some Avhisky. Only a feAV days before this Morgan
It is argued that 13 gallons of whisky is not an unusual amount for a man to supply himself with, and have in his private dwelling, with, perhaps, a long dry spell ahead of him. If that is sound logic,, then Witty and all other men, and women, too, would have been legally justified, in the last days of June, 1919, in consulting a mortality table, and ascertaining their expectancies of life, and laying in a stock sufficient to last through their lives. If this course had
“As to my still acting under the advice of a Des Moines doctor, I am not really acting under the advice of anybody now.”
Other assignments of error are directed to instructions involving questions that we have not discussed, but which we have examined carefully, and in which we find no error.
It was not error to submit the case to the jury, and the case was properly submitted to the jury.
There is no reason to disturb the verdict and judgment. —Affirmed.